Citation Nr: 1032320
Decision Date: 08/27/10 Archive Date: 09/01/10
DOCKET NO. 08-30 803 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Philadelphia,
Pennsylvania
THE ISSUES
1. Entitlement to service connection for a left knee condition
other than a scar, claimed as chronic pain of the left knee due
to shrapnel wound.
2. Entitlement to service connection for any left hand, arm or
wrist disability.
3. Entitlement to a compensable rating for left knee scar.
REPRESENTATION
Veteran represented by: The American Legion
ATTORNEY FOR THE BOARD
A. Robben, Associate Counsel
INTRODUCTION
The Veteran served on active duty from March 1965 to March 1969.
This case comes before the Board of Veterans' Appeals (Board) on
appeal from a December 2007 rating decision issued by the
Department of Veterans Affairs (VA) Regional Office (RO) in
Philadelphia, Pennsylvania, which, in pertinent part, denied
entitlement to service connection for a left knee or leg
condition, service connection for a left hand, wrist, or arm
condition, and a compensable rating for left knee scar.
The December 2007 rating decision also denied entitlement to
service connection for left thumb injury. However, the Veteran
did not initiate an appeal with respect to that issue.
In May 2010, the Veteran failed to appear at a hearing before the
Board in Washington, D.C. In response to a hearing clarification
letter, the Veteran indicated in August 2010 that he did not wish
to appear at a hearing and wanted his case to be considered on
the evidence of record. Therefore, the request for a hearing is
considered withdrawn. 38 C.F.R. § 20.704(d) (2009).
The RO previously denied claims that involved the upper or lower
left extremities, including claims for service connection for
arthritis of the joints and peripheral neuropathy for the upper
extremities. However, the specific issues claimed in this case,
chronic pain of the left knee and left hand as due to a wound
received in service, have not yet been directly adjudicated in a
final decision. Therefore, both issues will be treated as new
claims and new and material evidence will not be required.
The issue of entitlement to service connection for left eye
shrapnel wound has been raised in a September 2007 statement, but
has not been adjudicated by the Agency of Original Jurisdiction
(AOJ). Therefore, the Board does not have jurisdiction over it,
and it is referred to the AOJ for appropriate action.
FINDINGS OF FACT
1. The Veteran has not been shown to have a current left knee
disorder, other than a scar.
2. The Veteran has small asymptomatic scars of the left hand as
a residual of a mine fragment wound in service; other current
disability of the left hand, arm or wrist has not been
demonstrated.
3. The Veteran's left knee scar was not tender on examination,
is stable, less than six square inches, and does not cause any
limitation of motion.
CONCLUSIONS OF LAW
1. A left knee disability was not incurred or aggravated during
active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R.
§ 3.303 (2009).
2. A disability of the left hand, arm or wrist, namely scars,
was incurred during active service. 38 U.S.C.A. §§ 1110, 1131;
38 C.F.R. § 3.303.
3. The criteria for a compensable rating for left knee scar are
not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.3,
4.7, 4.14, 4.118, Diagnostic Codes 7801-7805 (2008).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No.
106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A.
§§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp.
2010) redefined VA's duty to assist a veteran in the development
of a claim. VA regulations for the implementation of the VCAA
were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159,
3.326(a) (2009).
Under the VCAA, VA must inform the claimant of any information
and evidence not of record (1) that is necessary to substantiate
the claim; (2) that VA will seek to provide; (3) that the
claimant is expected to provide; and (4) must request that the
claimant provide any evidence in his possession that pertains to
the claim. Pelegrini v. Principi (Pelegrini II), 18 Vet. App.
112, 120-21 (2004), see 38 U.S.C.A. § 5103(a); 38 C.F.R. §
3.159(b).
The United States Court of Appeals for Veterans Claims (Court)
has also held that the VCAA notice requirements of 38 U.S.C.A. §
5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a
service connection claim. Those five elements include: 1)
veteran status; 2) existence of a disability; 3) a connection
between the veteran's service and the disability; 4) degree of
disability; and 5) effective date of
the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473
(2006).
In a letter issued in August 2007, prior to the initial
adjudication of the claim, the RO notified the Veteran of the
evidence needed to substantiate his claim for service connection
and increased rating. The letter also satisfied the second and
third elements of the duty to notify by informing the Veteran
that VA would try to obtain medical records, employment records,
or records held by other Federal agencies, but that he was
nevertheless responsible for providing any necessary releases and
enough information about the records to enable VA to request them
from the person or agency that had them. He was informed that VA
provided ratings based on the rating schedule and was given
examples of the evidence he could submit.
For claims pending before VA on or after May 30, 2008, 38 C.F.R.
3.159 was amended to eliminate the requirement that VA request
that a claimant submit any evidence in his or her possession that
might substantiate the claim. 73 Fed. Reg. 23,353 (Apr. 30,
2008).
The Veteran has substantiated his status as a veteran. He was
notified of all elements of the Dingess notice, including the
disability-rating and effective-date elements of the claims, by
the August 2007 letter.
The Court had also held that at a minimum, adequate VCAA notice
in an increased rating claim required that VA notify the claimant
that, to substantiate such a claim: 1) the claimant must provide,
or ask VA to obtain, medical or lay evidence demonstrating a
worsening or increase in severity of the disability and the
effect that worsening has on the claimant's employment and daily
life; 2) if the diagnostic code under which the claimant is rated
contains criteria necessary for entitlement to a higher
disability rating that would not be satisfied by the claimant
demonstrating a noticeable worsening or increase in severity of
the disability and the effect of that worsening has on the
claimant's employment and daily life (such as a specific
measurement or test result), the Secretary must provide at least
general notice of that requirement to the claimant; 3) the
claimant must be notified that, should an increase in disability
be found, a disability rating will be determined by applying
relevant diagnostic codes; and 4) the notice must also provide
examples of the types of medical and lay evidence that the
claimant may submit (or ask VA to obtain) that are relevant to
establishing entitlement to increased compensation. Vazquez-
Flores v. Peake, 22 Vet. App. 37 (2008).
The Federal Circuit has overturned the requirement that VA
provide notice that the claim could be substantiated by evidence
of a disability's impact on daily life and that VA provide notice
with regard to potential diagnostic code criteria (element 2).
Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The
generic first, third, and fourth elements of the veteran's
court's decision were not disturbed by the Federal Circuit's
decision.
The August 2007 letter provided notice of the types of evidence
that could be provided to demonstrate a worsening or increase in
severity of his left knee scar and that any increase demonstrated
would be rated according to the relevant diagnostic codes.
The Duty to Assist
The VCAA also requires VA to make reasonable efforts to help a
claimant obtain evidence necessary to substantiate his claim. 38
U.S.C.A. § 5103A; 38 C.F.R.
§ 3.159(c), (d). This "duty to assist" contemplates that VA will
help a claimant obtain records relevant to his claim, whether or
not the records are in Federal custody, and that VA will provide
a medical examination or obtain an opinion when necessary to make
a decision on the claim. 38 C.F.R. § 3.159(c)(4).
VA has obtained records of treatment reported by the Veteran,
including service treatment records, records from various federal
agencies, and private medical records. Additionally, the Veteran
was provided a proper VA examination in October 2007 for his left
hand and left knee. A VA examination was provided to in July
2009 to evaluate the current status of his left knee scar.
However, the Veteran reported that there had been no worsening of
the scar since the October 2007 examination and the examiner
agreed.
For the reasons set forth above, the Board finds that VA has
complied with the VCAA's notification and assistance
requirements. The appeal is thus ready to be considered on the
merits.
Service Connection--Criteria
Service connection will be granted if the evidence demonstrates
that a current disability resulted from an injury or disease
incurred in or aggravated by active military service. 38
U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).
Establishing service connection generally requires (1) medical
evidence of a current disability; (2) medical or, in certain
circumstances, lay evidence of in-service incurrence or
aggravation of a disease or injury; and (3) medical evidence of a
nexus between the claimed in-service disease or injury and the
present disability. Shedden v. Principi, 381 F.3d 1163, 1167
(Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506
(1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see
also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004);
Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303.
Under 38 C.F.R. § 3.303(b), an alternative method of establishing
the second and third Shedden/Caluza elements is through a
demonstration of continuity of symptomatology. Barr v.
Nicholson, 21 Vet. App. 303 (2007); see Savage 10 Vet. App. 488,
495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302
(1999). Continuity of symptomatology may be established if a
claimant can demonstrate
(1) that a condition was "noted" during service; (2) evidence of
post-service continuity of the same symptomatology; and (3)
medical or, in certain circumstances, lay evidence of a nexus
between the present disability and the post-service
symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson, 12
Vet. App. at 253 (lay evidence of in-service incurrence
sufficient in some circumstances for purposes of establishing
service connection); 38 C.F.R. § 3.303(b).
In relevant part, 38 U.S.C.A. 1154(a) (West 2002) requires that
VA give "due consideration" to "all pertinent medical and lay
evidence" in evaluating a claim for disability or death
benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).
In any case where a veteran was engaged in combat with the enemy
during a period of war, VA shall accept as sufficient proof for
purposes of service connection for any disease or injury alleged
to have been incurred in or aggravated by said service, such
satisfactory lay or other evidence of service incurrence or
aggravation of such injury or disease, if consistent with the
circumstances, conditions, or hardships of such service,
notwithstanding the fact that there is no official record of such
incurrence or aggravation in such service, and, to that end,
shall resolve every reasonable doubt in favor of the veteran.
Service connection of such injury or disease may be rebutted by
clear and convincing evidence to the contrary. 38 U.S.C.A. §
1154(b).
The correct application of 38 U.S.C.A. § 1154(b) requires a
three-step, sequential analysis:
(1) Has the claimant produced "satisfactory lay or
other evidence of such injury or disease."
"Satisfactory evidence" is defined as "credible
evidence that would allow a reasonable fact finder to
conclude that the alleged injury or disease was
incurred in or aggravated by the veteran's combat
service."
(2) Is the proffered evidence "consistent with the
circumstances, conditions, or hardships of such
service."
(3) Once the first two steps are met, the Secretary
"shall accept" the veteran's evidence as "sufficient
proof of service connection," even if no official
record of such incurrence exists, unless the
Government can meet the burden of showing "clear and
convincing evidence to the contrary."
Collette v. Brown, 82 F.3d. 389 (Fed. Cir. 1996).
During the first two steps of this sequential analysis, the
credibility determination must be made as to the veteran's
evidence standing alone, not weighing the veteran's evidence with
contrary evidence. Only in the third step may contrary evidence,
such as the report of medical examination at separation, be
brought into play. Collette v. Brown, 82 F.3d. at 393.
While 38 U.S.C.A. § 1154(b) provides a factual basis upon which a
determination can be made that a particular disease or injury was
incurred or aggravated in service, it does not provide a basis to
link etiologically any current hearing loss to his period of
service. See Libertine v. Brown, 9 Vet. App. 521, 524 (1996).
The Federal Circuit has held that "[l]ay evidence can be
competent and sufficient to establish a diagnosis of a condition
when (1) a layperson is competent to identify the medical
condition, (2) the layperson is reporting a contemporaneous
medical diagnosis, or (3) lay testimony describing symptoms at
the time supports a later diagnosis by a medical professional."
Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see
also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006)
("[T]he Board cannot determine that lay evidence lacks
credibility merely because it is unaccompanied by contemporaneous
medical evidence").
"Symptoms, not treatment, are the essence of any evidence of
continuity of symptomatology." Savage, 10 Vet. App. at 496
(citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). Once
evidence is determined to be competent, the Board must determine
whether such evidence is also credible. See Layno v. Brown, 6
Vet. App. 465, 469 (1994) (distinguishing between competency ("a
legal concept determining whether testimony may be heard and
considered") and credibility ("a factual determination going to
the probative value of the evidence to be made after the evidence
has been admitted").
Service connection may also be granted for a disease first
diagnosed after discharge when all of the evidence, including
that pertinent to service, establishes that the disease was
incurred in service. 38 C.F.R. § 3.303(d).
When there is an approximate balance of positive and negative
evidence regarding any issue material to the determination of a
matter, the Secretary shall give the benefit of the doubt to the
claimant. 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v.
Derwinski, 1 Vet. App. 49, 53 (1990).
Left Knee
The Veteran contends that he currently has chronic pain in the
left knee, which he attributes to wounds received during service.
Service treatment records show the Veteran was treated for
shrapnel wounds following the explosion of a mine in September
1967. The only positive findings on examination were of a small
wound of the left lateral mid tibia and fragment wounds of the
right eye. Service treatment records were negative for any
indication of a wound of the left hand as well as any complaints,
treatment, or diagnosis of a chronic condition of the left knee
related to any wound received in service.
The record is negative for any post-service treatment records
involving the claimed chronic pain of the left knee due to a
wound received in service.
The Veteran received a VA examination in October 2007 at which
time he had no complaints or impairments to his left arm, left
wrist, or left leg other than scars of the left knee and left
hand. He refused physical examination of these areas except for
his left knee and left hand.
During the examination, he reported no muscle injuries of the
left knee or left hand other than pain in the left thumb from the
in-service sports injury. He had no complaints or impairments in
regards to his left knee and denied any muscle pain as a result
of the shrapnel fragment wound injuries. Examination of the
muscle groups of the left knee was found to be clinically normal
at the time of examination. There was no evidence of obvious
deformities of the muscle groups, and no bony structures, nerves,
or vascular involvement.
The examiner found no adhesions and no tendon, bone, joint, or
nerve damage in the left knee. Muscle strength was good and
there was no obvious muscle herniation.
On the left knee, the examiner noted two faint, horizontal scars,
measuring one centimeter in length by one-half centimeter in
width. They were non-tender and there was no adherence caused by
the scars. The texture was smooth, there was no ulceration or
breakdown of the skin, no tissue loss, inflammation or edema, no
keloid formation and no disfigurement cause by the scars. There
was mild or minimal depression caused by these scars and the
color was somewhat lighter than the surrounding tissue.
For service-connected benefits, there can be no valid claim in
the absence of proof of a present disability. Brammer v.
Derwinski, 3 Vet. App. 223 (1992). To be present as a current
disability, there must be evidence of the claimed condition at
the time of the claim, as opposed to sometime in the distant
past. Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998).
To the extent the record documents the Veteran's complaints of
pain, symptoms such as pain alone are not sufficient to establish
the existence of a disability.
See Sanchez-Benitez v. West, 13 Vet. App. 282 (1999) (symptoms,
without a diagnosed or identifiable underlying malady or
condition, does not in and of itself constitute a disability for
which service connection may be granted).
The examiner did not find any disability or deformity of the left
knee other than the existence of scars. The Veteran is already
service connected for the left knee scars.
The Veteran can attest to factual matters of which he had first-
hand knowledge, including current symptoms. See Jandreau v.
Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Washington v.
Nicholson, 19 Vet. App. 362, 368 (2005); see also Barr v.
Nicholson, 21 Vet. App. 303 (2007.); see also Falzone v. Brown, 8
Vet. App. 398, 405 (1995). Therefore, he is competent to testify
as to the symptom of pain and how often this pain occurs.
However, the Veteran as a lay person has not been shown to be
capable of making medical conclusions, to include diagnosing a
current disability as defined by VA regulations or making
statements regarding causality. Therefore, he is not competent
to state that he has a current left knee and left hand condition
that was caused by the wounds he received in service. Id.
Moreover, while the Veteran asserted chronic pain of the left
knee in his August 2007 claim, he denied muscle pain or pain
related to his scars during the October 2007 VA examination.
Therefore, the Board finds his statements regarding chronic pain
not credible.
As a current left knee disability, other than scars, has not been
demonstrated, service connection is not warranted. Absent
evidence of such current disability, the preponderance of the
evidence is against the claim; the benefit of the doubt rule is
not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski,
1 Vet. App. 49, 54-56 (1990).
Small Asymptomatic Scars of the Left Hand
The Veteran had received treatment in service for pain in the
left hand; however, this was related to a left thumb strain
incurred while playing sports. A March 1969 separation
examination revealed only a two inch scar on the left upper arm,
a one inch scar on the left wrist, and a one inch scar over the
left eye and was otherwise negative for any condition of the left
knee or left hand.
The Veteran's service records confirm that he was awarded the
Purple Heart and he was shown to have engaged in combat with the
enemy. In claiming service connection for chronic pain of the
left hand specifically as due to a wound received in service for
which he received the Purple Heart, the Veteran essentially
asserted that he sustained a left hand wound as the result of
combat. This type of injury is consistent with the
circumstances, conditions, or hardships of such service,
specifically, a mine explosion.
The Veteran received a VA examination in October 2007 at which
time he had no complaints or impairments to his left arm, left
wrist, or left leg other than scars of the left knee and left
hand. He refused physical examination of these areas except for
his left knee and left hand.
During the examination, he reported no muscle injuries of the
left hand other than pain in the left thumb from the unrelated
in-service sports injury. He had no complaints or impairments in
regards to his left hand and denied any muscle pain as a result
of the shrapnel fragment wound injuries. Examination of the
muscle groups of the left hand was found to be clinically normal
at the time of examination. There was no evidence of obvious
deformities of the muscle groups, and no bony structures, nerves,
or vascular involvement.
The Veteran was able to oppose the distal aspect of the left
thumb with the distal aspect of the second, third, fourth and
fifth fingers without difficulty and could touch the tips of the
second, third, fourth and fifth fingers to the median transverse
fold of the left palm without difficulty. Strength and dexterity
were both normal in terms of grasping objects and grasping,
pulling, pushing, twisting, probing, writing, touching, and
expression in regards to the left hand as a unit were all normal.
The examiner found no adhesions and no tendon, bone, joint, or
nerve damage in the left hand. Muscle strength was good and
there was no obvious muscle herniation.
The October 2007 VA examiner found four small scars on the dorsal
aspect of the left hand. Based upon review of the Veteran's
claims file, history and physical examination, the examiner
concluded that the scars were at least as likely as not related
to military service.
In terms of the left hand scars, the Board finds that
satisfactory lay evidence has been submitted to show that the
left hand scars were sustained in service and these scars are
consistent with the circumstances, conditions, and hardships of
the Veteran's service and the mine explosion. While the left
hand scars were not shown at the time of examination following
the mine explosion or upon separation from military service, it
is plausible that small scars of this nature went undetected or
were not addressed in favor of other more serious injuries at the
time. Thus, the fact that the left hand scars were not noted
upon examination in service does rise to the level of clear and
convincing evidence to rebut the Veteran's assertions that he
sustained those scars in service. 38 U.S.C.A. § 1154(b);
Collette v. Brown, 82 F.3d. 389 (Fed. Cir. 1996).
Therefore, considering the VA examiner's positive nexus opinion,
the Veteran's lay evidence, and resolving all doubt in favor of
the Veteran, the Board finds that service connection is warranted
for the small asymptomatic scars of the left hand as a residual
of a mine fragment wound in service.
Other Left Hand, Arm or Wrist Disability
For service-connected benefits, there can be no valid claim in
the absence of proof of a present disability. Brammer v.
Derwinski, 3 Vet. App. 223 (1992). To be present as a current
disability, there must be evidence of the claimed condition at
the time of the claim, as opposed to sometime in the distant
past. Gilpin v. West, 155 F. 3d 1353 (Fed. Cir. 1998).
To the extent the record documents the Veteran's complaints of
pain, symptoms such as pain alone are not sufficient to establish
the existence of a disability.
See Sanchez-Benitez v. West, 13 Vet. App. 282 (1999) (symptoms,
without a diagnosed or identifiable underlying malady or
condition, does not in and of itself constitute a disability for
which service connection may be granted).
The VA examiner did not find any current disability of the left
hand, arm or wrist other than the left hand scars. The record
does not show any other findings of such underlying disability.
There is no evidence of an underlying left hand, arm or wrist
disability, other than left hand scars. As the preponderance of
the evidence is against the claim, the benefit of the doubt rule
is not applicable and this aspect of the claim is denied. See
38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-
56 (1990).
Increased Rating- Legal Criteria
Disability evaluations are determined by evaluating the extent to
which a Veteran's service-connected disability adversely affects
his ability to function under the ordinary conditions of daily
life, including employment, by comparing his symptomatology with
the criteria set forth in the Schedule for Rating Disabilities
(Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2,
4.10.
In evaluating a disability, the Board considers the current
examination reports in light of the whole recorded history to
ensure that the current rating accurately reflects the severity
of the condition. The Board has a duty to acknowledge and
consider all regulations that are potentially applicable.
Schafrath v. Derwinski,
1 Vet. App. 589 (1991). The medical as well as industrial
history is to be considered, and a full description of the
effects of the disability upon ordinary activity is also
required. 38 C.F.R. §§ 4.1, 4.2, 4.10.
Where there is a question as to which of two evaluations shall be
applied, the higher evaluation will be assigned if the disability
picture more nearly approximates the criteria required for that
rating. Otherwise, the lower rating will be assigned. See 38
C.F.R. § 4.7.
In view of the number of atypical instances it is not expected,
especially with the more fully described grades of disabilities,
that all cases will show all the findings specified. Findings
sufficiently characteristic to identify the disease and the
disability therefrom, and above all, coordination of rating with
impairment of function will, however, be expected in all
instances. 38 C.F.R. § 4.21.
Where entitlement to compensation has already been established
and an increase in the disability rating is at issue, the present
level of disability is of primary concern. Although a rating
specialist is directed to review the recorded history of a
disability in order to make a more accurate evaluation, see 38
C.F.R. § 4.2, the regulations do not give past medical reports
precedence over current findings. Francisco v. Brown, 7 Vet.
App. 55 (1994).
Staged ratings are, however, appropriate for an increased rating
claim when the factual findings show distinct time periods where
the service-connected disability exhibits symptoms that would
warrant different ratings. The relevant focus for adjudicating
an increased rating claim is on the evidence concerning the state
of the disability from the time period one year before the claim
was filed until VA makes a final decision on the claim. Hart v.
Mansfield, 21 Vet. App. 505 (2007).
Left Knee Scar
A November 1970 rating decision granted service connection for
scar of the left knee, and assigned a non-compensable rating,
effective June 10, 1970. His August 2007 claim for service
connection for chronic pain of the left knee due to a wound
received in service has been interpreted to include a claim for
an increased rating of his service-connected scar.
The Board notes that as of October 23, 2008, revised provisions
for evaluating scars were enacted; however, this new regulation
indicates that the revised provisions are applicable only to
claims received on or after October 23, 2008. Accordingly, these
revisions do not apply to the present case. 73 Fed. Reg. 54708
(Sept. 23. 2008). Rather, the Veteran's claim for a higher
rating for scars will be considered solely under the criteria
effective as of the date of the claim.
Under Diagnostic Code (DC) 7801, scars, other than of the head,
face or neck, that are deep or that cause limited motion warrant
a 10 percent rating when the scars cover an area or areas
exceeding 6 square inches (39 sq. cm.). Scars that are
superficial, do not cause limited motion, and cover area of 144
inches or more are given a compensable rating under DC 7802.
Unstable superficial scars are rated under DC 7803. An unstable
scar is one where, for any reason, there is frequent loss of
covering of the skin over the scar. Such showing of instability
warrants a 10 percent evaluation. Superficial scars that are
painful on examination are rated under DC 7804. DC 7804
stipulates that a 10 percent disability evaluation will be
warranted with evidence that a superficial service-connected scar
is painful on examination. 38 C.F.R. § 4.118, DC 7804. Finally,
DC 7805 provides that other scars are rated on limitation of
function of the affected part. A deep scar is one associated
with underlying soft tissue damage, and a superficial scar is one
not associated with underlying soft tissue damage. 38 C.F.R. §
4.118, DC 7801- 7805 (prior to October 23, 2008).
The Veteran's service treatment records show a small wound of the
left lateral mid tibia following a mine explosion. Service
connection was granted based on a June 1970 VA examination, which
noted a one millimeter scar on the left knee as a residual of the
shrapnel wound.
The October 2007 VA examination revealed two faint, horizontal
scars, measuring one centimeter in length by one-half centimeter
in width on the left knee. They were non-tender and there was no
adherence caused by the scars. The texture was smooth, there was
no ulceration or breakdown of the skin, no tissue loss,
inflammation or edema, no keloid formation and no disfigurement
cause by the scars. There was mild or minimal depression caused
by these scars and the color was somewhat lighter than the
surrounding tissue. There was no limitation of function and no
muscle pain on examination of the scars.
As the Veteran's scars are one centimeter by one-half centimeter
(1.5 sq. cm.) with no underlying adhesion, and a deep scar with
an area exceeding six inches is required for a 10 percent rating
under DC 7801, a compensable rating under that code is not
warranted. A compensable rating under DC 7802 is not warranted
as the Veteran's scars do not have an area of 144 inches or more,
and a rating under DC 7803 is not warranted, as the Veteran's
scars are not unstable.
A 10 percent rating under DC 7804 is warranted for the Veteran's
scar if it is shown to be painful on examination. However, the
October 2007 VA examiner found that the Veteran's scar was not
tender on examination and the Veteran himself has not reported
that the scar is painful. DC 7805 provides that other scars are
rated on limitation of function of the affected part. In this
case, no evidence of record indicated, and the Veteran has not
reported, that there was any limitation of motion secondary to
his left knee scar(s).
The factors to be considered in evaluating disabilities from
healed wounds involving muscle groups are set forth in 38 C.F.R.
§§ 4.55, 4.56 (2009). For VA rating purposes, the cardinal signs
and symptoms of muscle disability are loss of power, weakness,
lowered threshold of fatigue, fatigue-pain, impairment of
coordination and uncertainty of movement. 38 C.F.R. § 4.56(c).
In this case, the October 2007 VA examination did not reveal any
of these signs or symptoms.
Furthermore, the Veteran reported during a June 2009 VA
examination that his left knee scar had not worsened since the
October 2007 VA examination.
Based on the foregoing, a compensable rating for the Veteran's
service-connected scar is not warranted. As the preponderance of
the evidence is against the claim, the benefit of the doubt rule
is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v.
Derwinski, 1 Vet. App. 49, 54-56 (1990).
Extraschedular Considerations
In exceptional cases an extraschedular rating may be provided.
38 C.F.R. § 3.321 (2009). The threshold factor for
extraschedular consideration is a finding that the evidence
before VA presents such an exceptional disability picture that
the available schedular evaluations for that service-connected
disability are inadequate. Therefore, initially, there must be a
comparison between the level of severity and symptomatology of
the claimant's service-connected disability with the established
criteria found in the rating schedule for that disability. Thun
v. Peake, 22 Vet. App. 111 (2008).
Under the approach prescribed by VA, if the criteria reasonably
describe the claimant's disability level and symptomatology, then
the claimant's disability picture is contemplated by the rating
schedule, the assigned schedular evaluation is, therefore,
adequate, and no referral is required. In the second step of the
inquiry, however, if the schedular evaluation does not
contemplate the claimant's level of disability and symptomatology
and is found inadequate, the RO or Board must determine whether
the claimant's exceptional disability picture exhibits other
related factors such as those provided by the regulation as
"governing norms." 38 C.F.R. 3.321(b)(1). (related factors
include "marked interference with employment" and "frequent
periods of hospitalization").
When the rating schedule is inadequate to evaluate a claimant's
disability picture and that picture has related factors such as
marked interference with employment or frequent periods of
hospitalization, then the case must be referred to the Under
Secretary for Benefits or the Director of the Compensation and
Pension Service for completion of the third step--a determination
of whether, to accord justice, the claimant's disability picture
requires the assignment of an extraschedular rating. Id.
The Board finds that the rating criteria contemplate the
Veteran's disability. The Veteran's disability is manifested by
a nontender, nonadherent scar that does not cause any impairment
in function. These manifestations are contemplated in the rating
criteria. The rating criteria are therefore adequate to evaluate
the Veteran's disability and referral for consideration of
extraschedular rating is, therefore, not warranted.
Total Rating
The Court has held that a total disability rating for
compensation based on individual unemployability (TDIU) is an
element of all appeals of an initial rating. Rice v. Shinseki,
22 Vet. App. 447 (2009). TDIU is granted where a Veteran's
service connected disabilities are rated less than total, but
they prevent him from obtaining or maintaining all gainful
employment for which his education and occupational experience
would otherwise qualify him. 38 C.F.R. § 4.16 (2009).
The Veteran has not reported that he is unemployed or that
service connected disabilities cause him to be unemployable.
There is no other evidence to that effect in the claims folder.
Accordingly, further consideration of entitlement to TDIU is not
required.
ORDER
Service connection for a left knee condition other than a scar,
claimed as chronic pain of the left knee due to shrapnel wound,
is denied.
Service connection for asymptomatic scars of the left hand is
granted; service connection for all other disabilities of the
hand, arm or wrist is denied.
A compensable rating for service-connected left knee scar is
denied.
____________________________________________
Mark D. Hindin
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs